Michels v. Lyons

Child custody is among the most fraught topics the law confronts. It is the area in which personal relationships and raw emotions must be reconciled with legal rules and court judgements. Such is the case of “Ann,” an eight-year-old girl at the center of a case now before the Wisconsin Supreme Court. Ann has periodically spent time with her paternal grandmother, but due to family squabbles, Ann’s mother stopped bringing Ann to visit. The grandmother filed a lawsuit saying she was entitled to visitation rights, which a Wisconsin statute allows grandparents to ask for in circumstances where they have a preexisting relationship with the child such that the severing of that relationship would not be in the child’s best interest.
Complicating matters, the U. S. Supreme Court has held that these familial relationships have a constitutional dimension. In the 2000 case of Troxel v. Granville, the Court struct down a Washington State law that granted grandparents visitation rights when to do so would be in “the best interests of the child.” This standard was constitutionally infirm, the Court held, because parents have important rights that cannot by overcome by a bare showing that the child would be better off being raised by someone else. As the late Justice Antonin Scalia pointed out, a great number of children should be taken from their homes if the question is whether someone else might do a better job raising them. Wisconsin’s statute is somewhat different than the Washington law, in that it requires a greater showing before invading the parent’s decision-making. The question for the Wisconsin Supreme Court is whether that’s different enough to shift the constitutional calculus.
Cato has filed an amicus brief, without taking a position as to which member of the family should prevail in this very personal dispute. Instead, we concern ourselves with the standards the court should apply. There’s a longstanding dispute about the source and extent of constitutional rights not explicitly set out in the constitution’s text (or even if they exist at all). The parental rights the U.S. Supreme Court previously recognized are of this type: there’s no specific clause that specifies that parents are entitled to direct the upbringing of their children, but the Court has (correctly) recognized such a right as an inherent feature of liberty. Cato’s brief argues that this understanding should be expanded, to recognize that it is not only the parent’s liberty that matters here, but also that of the child. We draw on the original understanding of the Fourteenth Amendment, in particular the Privileges and Immunities Clause, which while having fallen into disuse was intended to be the guarantor of such rights. We urge the Wisconsin Supreme Court to address the full scope of citizen’s constitutional liberties in considering Ann’s fate.

Laurence H. Tribe, American Constitutional Law (3d ed.

Although it involves visitation rights, this is no ordinary

family-law case. The Court faces fundamental questions ofindividual liberty, with significant implications for FourteenthAmendment jurisprudence in Wisconsin and beyond. To that end,this case presents a unique opportunity to analyze a key part ofthe U.S. Constitution from first principles. This brief argues that the Court should adhere to theoriginal public meaning of the Fourteenth Amendment. Thatmeans two things. First, the Court should consider all the libertyinterests at stake. Second, it should identify grounds for theparties’ rights that are consistent with the Privileges orImmunities Clause, not simply wedge them into the Due ProcessClause under the U.S. Supreme Court’s self-admittedlyunderdetermined jurisprudence.

I. The Court should consider all the liberty interests at

stake.

The lower courts and the parties have centered their

attention squarely on the liberty interests of the parents, Michels

1and Lyons. Indeed, the parents base their challenge toWisconsin’s grandparent-visitation statute and the visitationorder solely on alleged interference with their interest in the“care, custody and upbringing” of Ann. (E.g., Appellants’ Br. 10.)1The parents’ interest, however, is not the only interest at stake:both Ann and her grandmother, Kelsey, have their own, separateinterests, too. The Court should recognize and protect all theliberty interests that its ruling will necessarily affect. First, this case implicates Ann’s liberty interests. Children,like adults, “are protected by the Constitution and possessconstitutional rights”—rights that do not “come into beingmagically only when one attains the state-defined age ofmajority.” Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S.52, 74 (1976). Yet although children were at the center of thedispute in Troxel v. Granville, the plurality opinion in that case,on which the parents here primarily rely, offers only silence onthe interests of children. See 530 U.S. 57 (2000) (plurality op.).Throughout the Troxel litigation, “[n]obody asked” the childrenwhat they wanted, and “nobody represented their interests . . . .”Susan E. Lawrence, Substantive Due Process and ParentalRights: From Meyer v. Nebraska to Troxel v. Granville, 8 J.L. &Fam. Stud. 71, 108 (2006). Like the children in Troxel, Ann is the subject of thisdispute, and she will undoubtedly be affected the most by itsoutcome. But unlike in Troxel, Ann’s interests here were

1 The parents are asserting their own rights and are not acting in a trustee-like capacity asserting rights on Ann’s behalf. Cf. Troxel, 530 U.S. at 93 n.2(Scalia, J., dissenting).

2represented by a guardian ad litem. (R.29; R.87 at 123:11–20.)The Court should keep Ann’s interests, both directly and asrepresented by the guardian ad litem, in the foreground. It mustensure that Ann does not become a mere object, to be shuffledaround both literally and figuratively, as if she were “so muchchattel.” Troxel, 530 U.S. at 89 (Stevens, J., dissenting). Second, this case also implicates Kelsey’s liberty interestsas a grandparent. Substantive-due-process doctrine does not“cut[] off any protection of family rights at the first convenient, ifarbitrary boundary . . . of the nuclear family.” Moore v. City of E.Cleveland, 431 U.S. 494, 502 (1977); accord Troxel, 530 U.S. at 98(Kennedy, J., dissenting). Given their direct familial connection,their contemporary and historic importance in Western culture,and their frequent position “in fact[,] if not in law” as “part of thechild’s emotional family[,]” Lawrence, supra, at 113,grandparents share an interest in the upbringing of theirgrandchildren. To that end, visitation may protect Kelsey’sinterests by allowing her “to contribute to the child’s well-beingby providing a sense of continuity.” In re Opichka, 2010 WI App23, ¶ 22, 323 Wis. 2d 510, 780 N.W.2d 159. Grandparent-visitation cases involve “multiple overlappingand competing prerogatives of various” parties: parents, children,and grandparents. Troxel, 530 U.S. at 86 & n.7 (Stevens, J.,dissenting). Unlike termination-of-parental-rights cases and“[u]nlike the typical substantive due process scenario,” Lawrence,supra, at 113 n.259, this case and others like it present a contestbetween multiple private parties that goes beyond a “a bipolar

3struggle between the parents and the State,” Troxel, 530 U.S. at86 & n.7 (Stevens, J., dissenting). While the state generally hasno business interfering with the private ordering of family life,when that private ordering cannot overcome conflict and achievea balance of intergenerational interests, a family-court judge mayvery well be the appropriate referee. Here, the Court shouldconsider the interests of all those involved, balancing the“governing right of the parent[s]” with the “interests of thedependent child.” Lawrence, supra, at 73.

II. The Court should identify grounds for the parties’

rights that are consistent with the original public meaning of the Fourteenth Amendment.

The parents ask this Court to rule that the visitation order,entered under the grandparent-visitation statute, infringed ontheir substantive-due-process rights. Relying principally onTroxel, they argue that “substantive due process requires apetitioning grandparent to show that not granting visitationwould cause harm to the child.” (Appellants’ Br. 29.) In Troxel, the U.S. Supreme Court scrutinized a“breathtakingly broad” statute that permitted “any person” at“any time” to petition for visitation rights. Troxel, 530 U.S. at 67.Limiting its holding to that statute, the Court expressly declinedto pass on the question of whether “all nonparental visitationstatutes” require a “showing of harm or potential harm to thechild as a condition precedent to granting visitation.” Id. at 73.The plurality declared only that courts must give “special weight”to a parent’s visitation preferences. Id. at 69–70.

4 The Wisconsin statute at issue here is narrower than theTroxel statute: it permits only a subclass of grandparents toobtain visitation rights under certain conditions. Yet despite thisnarrower reach, and despite how Troxel did not require a showingof harm, the parents nonetheless ask this Court to require such ashowing. (Appellants’ Br. 29.) A ruling in favor of the parents,then, would expand Troxel and the rights it envisions. Theparents insist these expanded rights can be found under theFourteenth Amendment’s Due Process Clause. But locating the asserted rights under the Due ProcessClause—in particular, the substantive-due-process doctrine—isnot necessarily consistent with the original meaning of theFourteenth Amendment. Instead, to the extent they exist, theparents’ asserted rights, along with any rights protecting Ann’sand Kelsey’s liberty interests, can likely be found in otherlocations more consistent with original meaning. In deciding thiscase, the Court should thoroughly explore alternative grounds forthe parties’ rights. A. The Fourteenth Amendment was enacted in theaftermath of the Civil War to stymie state governments fromviolating the civil liberties of freed slaves and white Republicans,to ensure the constitutionality of the Civil Rights Act of 1866, andto combat the notorious and discriminatory “Black Codes.” SeePhilip Hamburger, Privileges or Immunities, 105 Nw. U.L. Rev.61, 116–17 (2011). Section 1 of the amendment provides, inrelevant part:

5 No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These three clauses are known as the Privileges or Immunities

Clause, the Due Process Clause, and the Equal ProtectionClause, respectively. The Privileges or Immunities Clause contains what shouldbe the Fourteenth Amendment’s primary mechanism for limitingstate infringement of substantive rights. See McDonald v. City ofChicago, 561 U.S. 742, 808 (2010) (Thomas, J., concurring in partand concurring in the judgment). Indeed, the clause is mostappropriately read “as a guarantor of substantive rights againstall state action.” Richard A. Epstein, Of Citizens and Persons:Reconstructing the Privileges or Immunities Clause of theFourteenth Amendment, 1 N.Y.U. J.L. & Liberty 334, 345 (2005). Such a reading is consistent with original meaning. Beforeand during the Reconstruction Era, “the words rights, liberties,privileges, and immunities” were treated as synonymous and“used interchangeably.” Michael Kent Curtis, No State ShallAbridge 171–73 (1986); accord McDonald, 561 U.S. at 813–18(Thomas, J., concurring) (citing Blackstone, colonial legislativeacts, antebellum judicial decisions, dictionaries, and other texts).The clause’s framers modeled it after the Privileges andImmunities Clause of Article IV, see Saenz v. Roe, 526 U.S. 489,502–03 n.15 (1999), which protects “privileges and immunities”that are “in their nature, fundamental” and that “belong, of right,to citizens of all free governments[,]” Corfield v. Coryell, 6 F. Cas.

6546, 551 (C.C.E.D. Pa. 1823) (Washington, J., riding circuit).Article IV, in turn, traces its lineage back to the Articles ofConfederation, see art. IV (1781), and to colonial charters, see,e.g., Virginia Charter of 1606. Rep. John Bingham, the primary drafter of the FourteenthAmendment, understood the Privileges or Immunities Clause toprotect substantive rights. Cong. Globe, 39th Cong., 1st Sess.2542, 2765–66 (1866); see McDonald, 561 U.S. at 829–35(Thomas, J., concurring). Other members of the 39th Congressshared that understanding. Senator John Sherman, for example,explained that the clause would protect “the privileges,immunities, and rights, (because I do not distinguish betweenthem, and cannot do it,) of citizens of the United States,” as foundin American and English common law, the U.S. Constitution,state constitutions, and the Declaration of Independence. Cong.Globe, 42d Cong., 2d Sess. 844 (1872). In these sources, courtsinterpreting the Privileges or Immunities Clause would “find thefountain and reservoir of the rights of American as well as ofEnglish citizens.” Id. But just a few short years after ratification, in theSlaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the U.S.Supreme Court gutted the Privileges or Immunities Clause. InSlaughter-House, a Louisiana law granted a private monopoly onthe sale and slaughter of livestock in New Orleans. Independentbutchers challenged the law, alleging that it interfered with theirsubstantive right to exercise their trade and earn a living. TheCourt, in a divisive 5-4 ruling, upheld the law, concluding that

7the Privileges or Immunities Clause protected only very limitedrights of national citizenship, such as the right to use navigablerivers. Id. at 79–80. But the clause did not, according to theSlaughter-House majority, protect any rights of state citizenship,including the rights asserted by the butchers and most otherrights. Id. at 78–82. There is now an established cross-ideological scholarlyconsensus, and an emerging judicial recognition, that Slaughter-House “blatantly” misinterpreted the Privileges or ImmunitiesClause.2 Alan Gura et al., The Tell-Tale Privileges or ImmunitiesClause, 2009 Cato Sup. Ct. Rev. 163, 181–84 (2009); see alsoMcDonald, 561 U.S. at 805 (Thomas, J., concurring); Laurence H.Tribe, American Constitutional Law 1320–31 (3d ed. 2000);Curtis, supra; Richard A. Epstein, Further Thoughts on thePrivileges or Immunities Clause of the Fourteenth Amendment, 1N.Y.U. J.L. & Liberty 1096, 1098 (2005). “Virtually no seriousmodern scholar—left, right, or center—thinks [that Slaughter-House] is a plausible reading of the [Fourteenth] Amendment.”Akhil R. Amar, Foreword: The Document and the Doctrine, 114Harv. L. Rev. 26, 123 n.327 (2000). Not surprisingly, there is alsorelative consensus that interpreting the Privileges or Immunities

2 Worst of all, Slaughter-House’s narrow interpretation of the Privileges or

Immunities Clause, which directly contradicts that clause’s original meaning,was “probably the worst holding, in its effect on human rights, ever utteredby the Supreme Court.” Charles Black Jr., A New Birth of Freedom: HumanRights, Named and Unnamed 55 (1997). Slaughter-House arguably allowedJim Crow to reign in the South for nearly a century. See McDonald, 561 U.S.at 855–58 (Thomas, J., concurring) (citing United States v. Cruikshank, 92U.S. 542 (1875)); Eric Foner, A Short History of Reconstruction 223–25(1990).

8Clause according to its original meaning would benefitFourteenth Amendment jurisprudence. To fill the void left by Slaughter-House, litigants andjustices seeking to protect substantive individual rights turned toa “most curious place”—the Due Process Clause—as “analternative fount of such rights,” McDonald, 561 U.S. 742, 809(Thomas, J., concurring), which ultimately lead to thesubstantive-due-process doctrine, see, e.g., Akhil R. Amar, TheBill of Rights 209–10 (1998). Although the phrase “due process oflaw” was understood historically as including a limitedsubstantive component—particularly in the “of law” part—“theredaction of the Privileges or Immunities Clause” and thecorresponding use of “the Due Process Clause to textually justifythe substantive scrutiny of laws” “wreak[] havoc on the coherenceand original meaning of” the Fourteenth Amendment. Randy E.Barnett, What’s So Wicked About Lochner?, 1 N.Y.U. J.L. &Liberty 325, 331 (2005). Unfortunately but predictably, substantive due process hasproven to be an inadequate substitute for the Privileges orImmunities Clause. Id. at 332–33; see McDonald, 561 U.S. at 812(Thomas, J., concurring). It has “undermined the legitimacy ofprotecting the rights of individuals from violation by stategovernments” and, at the same time, “become a potent weaponagainst the practice of originalist constitutional interpretation.”Id. Whatever its merits, substantive due process has beencriticized by those across the ideological spectrum as inconsistent

9at best and, at worst, an “atrocity.” City of Chicago v. Morales,527 U.S. 41, 85 (1999) (Scalia, J., dissenting). B. Arguing that their asserted rights can be found underthe Due Process Clause, the parents, following the lead of theTroxel plurality, rely on Meyer v. Nebraska, 262 U.S. 390 (1923);Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary,268 U.S. 510 (1925); and Wisconsin v. Yoder, 406 U.S. 205 (1972).Yet at their core, Meyer, Pierce, and Yoder are not even aboutparental rights; they are about protecting individual libertyagainst state interference generally. For one thing, these cases focus only superficially on therights of parents qua parents in the way Troxel did. In Meyer, theplaintiff was not asserting rights as a parent, but rather as aschoolteacher—namely, the right to pursue a profession absentstate interference. Meyer, 262 U.S. at 400–01. Neither side“mounted a parental rights argument in the written briefs[,]” andMeyer’s own attorney and other contemporaries “characterizedthe case as providing a constitutional guarantee for the right tomaintain private schools.” Lawrence, supra, at 74–75, 111. TheMeyer Court’s opinion reiterates this education focus, homing inon how the challenged statute “interfere[d] with the calling ofmodern language teachers, with the opportunities of pupils toacquire knowledge, and with the power of parents to control theeducation of their own.” Meyer, 262 U.S. at 401. “[T]he problem inMeyer,” as indicated by the Court’s own language, was “not stateinterference in the intimacies of home and family, but, rather the

10state’s attempt to limit the acquisition of knowledge andhomogenize its populace.” Lawrence, supra, at 77. Pierce likewise rested on these common themes ofknowledge and homogenization, with only a tertiary andbackground focus on any concept of parental rights. See Pierce,268 U.S. at 534–35. So, too, was Yoder minimally occupied withany parental right to control a child’s upbringing. See Yoder, 406U.S. at 207–36. What is more, substantive due process does not permeatethe trio of cases. As for Meyer and Pierce, “had they been decidedin recent times, [they] may well have been grounded upon FirstAmendment principles protecting freedom of speech, belief, andreligion.” See Troxel, 530 U.S. at 95 (Kennedy, J., dissenting).Yoder, as the parents here concede, “involves the intersection ofparental rights with the right to free exercise of religion.”(Appellants’ Br. 33 n.5.) And as Justice Thomas has indicated,the Privileges or Immunities Clause—not the Due ProcessClause—may be the proper constitutional home for the rightsprotected in all three cases, as well as in Troxel. See Troxel, 530U.S. at 80 (Thomas, J., dissenting). C. Given the above discussion, the Court should identifyalternative grounds for the parties’ rights. Any decision thatgrounds rights in substantive due process, at least without firstattempting to identify alternative grounds, perpetuates andcompounds constitutional malapropisms. Rights grounded insubstantive due process—and the judicial decisions announcingthem—are viewed with suspicion and invite attack. Indeed, “the

11use of the Due Process Clause” to do the work of the Privileges orImmunities Clause “has been vulnerable to historical claims ofillegitimacy from its inception.” Barnett, supra, at 332. When aconstitutional doctrine is as maligned as substantive due process,there is ample reason to avoid relying on it to protect libertyinterests, except when absolutely necessary. This is especiallytrue here for two reasons. First, while Troxel forms the foundation of the parents’claim to a right grounded in substantive due process, Troxelfailed to produce a majority opinion; the justices splintered onboth judgment and reasoning. Even the plurality expresslydodged defining the precise contours of any substantive parentalright. Troxel, 530 U.S. at 73. Also, as explained above, the caseson which the Troxel plurality relied—Meyer, Pierce, and Yoder—do not contemplate a Troxel-like substantive-due-processparental right at all. See supra Part II.B. Second, alternative grounds exist that are more consistentwith the original meaning of the Fourteenth Amendment. Asexplained above, the Privileges or Immunities Clause wasoriginally understood as the Fourteenth Amendment’s primarymechanism for protecting substantive rights. See supra Part II.A.Other plausible grounds include the First Amendment’sguarantee of freedom of association, the Wisconsin Constitution,and other constitutional, statutory, or common-law sources.

12 CONCLUSION

While amicus takes 110 position on which party should

prevail, this Court should decide this case consistent with theoriginal public meaning of the Fourteenth Amendment as setforth above.

length of this brief is 2,999 words.

Dated this 17th day of September, 2018.

HUSCH BLACKWELL LLP

Attorneys for the Cato Institute

14 ELECTRONIC FILING CERTIFICATION

I hereby certify that I have submitted an electronic copy of

this brief that complies with the requirements of WisconsinStatutes section 809.19(12). The text of the electronic copy of thisbrief is identical to the text of the paper copy of this brief filed asof this date. A copy of this certification has been served with thepaper copies of this brief filed with the Court and served on allparties.